Prioritising the rights and best interests of children in law reform

Hannah Gandy

Queensland’s new bail laws will infringe on the human rights of children. A better approach that understands the needs of vulnerable children is needed.

23 March 2023

Queensland’s new bail laws will infringe on the human rights of children. A better approach that understands the needs of vulnerable children is needed.

Last week, the Queensland Parliament passed reforms that will see children as young as ten charged for breaching bail conditions. While the rest of Australia seems to be moving towards reforms that decriminalise young people, Queensland pushes on with its “tough on crime” stance that risks children’s chances of rehabilitation.  

Queenslanders have seen increases in violent youth crime, with some residents demanding the Government introduce real consequences and lock up kids to keep the community safe. Anti-crime campaigners argue that they feel unsafe to leave the house, particularly in areas of high youth offending. However, former President of the Children’s Court of Queensland, John Robertson, says that statistics “completely refute” this suggestion. 

The reforms are inconsistent with fundamental human rights outlined in the United Nations (UN) Convention on the Rights of the Child and the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, as they will result in more children being detained. Moreover, they are in direct conflict with Queensland’s own Human Rights Act. They are inconsistent with international standards placing importance on the “best interests of the child”. In order to legislate the reforms, the Queensland Parliament passed a declaration that the provisions operate to the exclusion of human rights. The Government justified this based on the severity of increased youth offending and ensuring community safety.  

Queensland is the only Australian state moving in this direction. The Victorian Government introduced similar reforms in 2013 with breach of bail specific offences for children. However, these were repealed in 2016, with children being gaoled for technical and non-serious breaches of conditions.

Experts across Australia have unanimously agreed that the reforms will lead to more children spending time in detention. UN standards state that the detention of children, and detention of people before trial, should only be used as a last resort. Detaining children, particularly in watch-houses, is shown to reduce their chances of rehabilitation and is not in their best interests. Detention disrupts brain development and worsens trauma, particularly when children are detained in poor and unsafe conditions for extended periods of time. Children have been reported as sleeping in shower stalls, and not having access to fresh air or sunlight. Further, when children are detained, they are placed amongst convicted young people, which can normalise their criminal behaviour and reduce their access to positive role models and positive community engagement.  

Queensland watch-houses have been facing capacity issues, having more children in detention than any other state, with up to 100 children each night being detained alongside adults, despite this breaching their human rights. Whilst Queensland is running out of spaces to detain children, this increase in detention from the reforms will see children who are not actually found guilty of an offence being detained more often. This directly goes against the presumption of innocence, which underpins a fair legal system – one that allows an accused to prepare for trial, avoids the stigma of being an accused person, and does not punish people who are not guilty.  

Children who do not have appropriate supports in place are more likely to be refused bail and end up in a watch-house. In Queensland, over 60 per cent of young people detained are Aboriginal or Torres Strait Islander. Children in detention are often exposed to a complex range of trauma prior to, and during, their time in custody. Additionally, children who have no address to be bailed to, or have no adult present to sign the bail undertaking, are less likely to be bailed in practice. The child is often unable to sign the undertaking themselves due to not having mental capacity to understand the legal effect and conditions, despite being presumed as having mental capacity to be charged with a criminal offence in the first place. 

Once young people are on bail, and subject to a set of conditions, a range of acts can lead to technical and minor behaviour breaches for a young person who is actually acting reasonably. Police can face difficulties, with children being bailed to addresses where they are practically unable to reside because they have no other listed address. This can include being bailed to addresses where they are unsafe and experience violence or exposure to problematic and unsafe behaviour. There have been circumstances where police bail a child to an address where they are experiencing family violence because the child already has an order to that address, and police cannot issue another one which is inconsistent. These types of bail conditions are difficult to change, with children being told to apply to the court for an amendment. For a child who experiences a range of complex trauma or without appropriate adults in their life to support them, approaching the court or accessing legal help is a real challenge. 

Further, imposing bail conditions such as requiring a young person to reside at a particular address, introducing a curfew, specifying that they do not engage with certain persons, or attend particular places, is already a punitive measure for a young person. Suddenly, behaviour which is otherwise normal and legal, is illegal – despite not being found guilty of a crime.  

Alongside Queensland’s low minimum age of criminal responsibility, it is difficult to confirm that a child has the requisite mens rea and capacity to be charged with a criminal offence, even where this behaviour is naturally “wrong” within a child’s understanding. Charging children for behaviour which they are not likely to consider intuitively “wrong” poses further problems for determining whether this state of mind exists. The imposition of bail conditions follows the arrest and interview process, the exercise of invasive police rights in investigation, and time spent in custody – this all feels like punishment to a child already. For a child, the idea of receiving a criminal charge often means little as it has less practical impact in daily life than bail conditions do. 

Deciding not to charge children for breaches of bail does not mean the community will be left unprotected and residents left unable to walk the streets. It means that children who carry out legal and normal behaviour will not be further criminalised. A 10-year-old can be charged for other criminal offences, regardless of whether they are on bail. Whether or not a breach constitutes a criminal offence, a child can still be arrested and brought before a court, risking having their bail revoked or amended. This risk and punishment makes more sense in a child’s brain and is a less unreasonable, but still problematic, consequence for breaking the rules.

If the Queensland Government aims to reduce youth offending and keep the community safe, they need to reconsider the entire youth criminal process, rather than changing procedures in isolation. A child’s engagement in problematic behaviour is often a symptom of deeper issues, including lack of stability in home life, health problems, addiction, family violence, poverty, discrimination, exclusion, or abuse. Reducing youth crime requires preventing young people from being further disadvantaged. Making sure the youth criminal process complies with human rights that ensure their basic needs are met is a good start. 

When considering the youth criminal process in its entirety, Queensland needs to question the purposes and consequences of arresting, investigating and punishing children and how well this is able to fix problematic behaviour stemming from disadvantage. If the system sees a child doing something “wrong” it needs work out what problems that child faces, and address the multiple factors that lead to offending in an efficient and meaningful way. Alongside addressing these factors, investing in therapeutic programs focused on role modelling, community engagement, education and employment will help inspire and lift these children up out of circumstances they did not choose.      

 

Hannah Gandy is a lawyer and youth advocate working to improve the rights, rehabilitation prospects, and experiences of young persons through areas of policing, education and crime. She is employed as the Senior Liaison Officer for the Youth Referral and Independent Person Program which supports 10- to 17-year-olds in police custody. She is currently completing a Master of Laws Specialising in Social Justice at University College London, conducting research into the youth justice system and criminal procedure as a Victorian Government John Monash Scholar and Rotary Global Grant Scholar.  

Image credit: Franckreporter/Getty Images

Features

  • Juliet Bennett

  • Cliff Eberly and Wenqian Gan

  • Cliff Eberly and Wenqian Gan

Subscribe to The Policymaker

Explore more articles

  • Jin Lim

  • Harry Grant

  • Christopher Day

Features

  • Juliet Bennett

  • Cliff Eberly and Wenqian Gan

  • Cliff Eberly and Wenqian Gan

Explore more articles

  • Jin Lim

  • Harry Grant

  • Christopher Day

Subscribe to The Policymaker